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$1,950,000 Settlement for Union Carpenter Who Suffered Rotator Cuff Tears and Spinal Injuries After Scaffold Fall

Court and County
Supreme Court, New York County

Description of Case
At the time of the accident, the Plaintiff was 59 years old and working as a union carpenter on the Second Avenue subway project in uptown Manhattan. Plaintiff and his co-workers had been instructed to remove concrete formwork/temporary support components that had been placed to support and brace concrete as it dried after being poured for a higher level of the Subway station. During the removal process, pursuant to instructions from Plaintiff’s foreman, overhead beams that were supporting the very heavy formwork had been removed above where Plaintiff was working.

The accident occurred when a concrete form attached to plywood that Plaintiff’s co-worker was removing suddenly fell, uncontrolled, striking Plaintiff and causing him to fall from the scaffold on which he was standing. The falling object was approximately 4′ x 8′ in size and weighed over 100 pounds. The scaffold on which Plaintiff was working did not have any railings around it, which contributed to his fall and resultant injuries.

Plaintiff moved for summary judgment against the Defendants for violating Labor Law Section 240(1), otherwise known as the Scaffold Law. The motion was granted. Defendants appealed this decision and the appeal was pending in the Appellate Division, First Department, at the time of the settlement.

As a result of the accident the Plaintiff sustained rotator cuff tears in his left shoulder and a rotator cuff tear in his right shoulder. He subsequently underwent arthroscopic surgery to his left shoulder on August 21, 2015, and arthroscopic surgery to his right shoulder on September 16, 2016. Plaintiff also alleged to have suffered a cervical spine herniation at C7-T1 and cervical spine bulges at C4-C5, C5-C6 and C6-C7. He also alleged to have sustained a lumbar spine herniation at L5-S1 and lumbar spine bulges at L2-L3, L3-L4, and L5-L6.

It was alleged by the Plaintiff that based on his injuries, he still had occasional pain and range of motion restrictions to his shoulders and pain in his lower back and could not return to work in any capacity following the accident. It was also alleged that Plaintiff will require future medical treatment and incur costs related to that treatment. Plaintiff made claims for past and future lost earnings and union benefits and future cost of healthcare. Plaintiff also made claims for past and future pain and suffering and loss of enjoyment of life.

Plaintiff was hospitalized six months after the accident for a period of nine weeks for a very serious and life-threatening case of cryptococcal meningitis, bilateral subdural hematomas secondary to Coumadin treatment for deep vein thrombosis, left hemiparesis, and seizure, all of which were unrelated to the subject accident. His hospitalization was complicated by sepsis and after discharge he required a walker for several months. Defendants would have put forth evidence that Plaintiff’s inability to work was as a result of this serious medical condition and not any injuries related to the subject accident.

Defendants’ expert orthopedic surgeon would have testified that based on his review of Plaintiff’s medical records and his physical examination of the Plaintiff, he had an excellent clinical result from the shoulder surgeries. He would have also testified that there is no evidence that surgery is related to the accident and that the Plaintiff’s shoulder MRI films demonstrated preexisting conditions that can be aggravated by an accident. He also found no evidence of cervical or lumbar radiculopathy.

Defendants’ expert neurologist would have testified that based on his review of the Plaintiff’s medical records and his physical examination of the Plaintiff, his injuries, if any, from the accident were minor since he was able to continue working that day and went back to work two days later. He also opined that Plaintiff’s neurological examination was normal.

Defendants’ vocational rehabilitation expert would have testified at trial that the Plaintiff is capable of performing his pre-injury occupation as a carpenter; that Plaintiff has the ability to perform a range of occupations using transferable skills; that the Plaintiff has not lost any access to the labor market and therefore has not sustained any loss of his earning capacity; that Plaintiff could return to alternate employment, if necessary, without further training; that Plaintiff is gainfully employable given his transferable skills.

Settlement Amount
This case settled before trial for $1,950,000.

Handling Attorneys
This case was handled by Partners Daniel P. O’Toole and Frederick C. Aranki.

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